This copy is for your personal non-commercial use only. To order presentation-ready copies of Toronto Star content for distribution to colleagues, clients or customers, or inquire about permissions/licensing, please go to: www.TorontoStarReprints.com

OTTAWA—The federal Conservative government promises to name a new judge for a Quebec vacancy on the Supreme Court of Canada “very soon” but refuses to say if it will consult the Opposition or the broader Quebec legal community this time.

Under fire in the Commons over an apparent leak of the names on an initial long list and a vetted shortlist of judicial candidates, Harper refused to say whether he will relaunch the selection process his government long touted as “transparent and accountable” and is now a shambles.

Last spring, it led to the appointment of Federal Court of Appeal Justice Marc Nadon, whose appointment was later invalidated by the Supreme Court itself. The high court ruled Quebec seats were restricted to members of Quebec’s senior trial or appellate court or current members of the Quebec bar.

On Monday, Harper said in French that “since that is the decision, the government will follow the necessary steps” to fill the vacancy left by last year’s retirement of Morris Fish.

But Harper refuses to directly answer Opposition questions about whether he will try nevertheless to elevate someone from the federal court bench.

Article Continued Below

The ruling did not technically disallow the appointment of a federal court judge who rejoins the Quebec bar temporarily and becomes a “current” member for the purposes of a Supreme Court appointment.

Montreal law professor Stéphane Beaulac says the Supreme Court’s decision in the Nadon case may continue to hinder the federal government’s ability to change the selection process or scrap it altogether, even if it is tempted to do so.

The ruling “constitutionalized” the Supreme Court — recognizing some of its characteristics may only be changed by constitutional amendment. Beaulac said someone might well argue the modern selection process, with its formal consultations, is also now entrenched as part of the constitutionally protected “composition of the court.” He suggested it may mean the process of nominating judges — or the prime minister’s ability to scrap it to any great extent — could be subject to judicial review to see if it conforms with constitutional requirements.

In the Commons, Opposition leader Tom Mulcair demanded Harper explain why “Conservatives rigged the process to make sure that at least one of the three final candidates would be from the federal court.”

“The reason federal court judges were considered in this appointment is that federal court judges had always been considered eligible for these appointments up to and including the process that chose Justice (Richard) Wagner,” Harper answered. “Obviously, the Supreme Court has now ruled otherwise and as I said before, the government will respect that ruling and act accordingly.”

Later, Mulcair said he will propose in the next federal election a new procedure following the British model, which he says removes the choice from politicians.

For now, the New Democrats and Liberals are rethinking their involvement in any new consultation, although neither has refused to participate.

Both said Monday the government has repeatedly breached confidentiality obligations imposed on MPs who are involved in vetting judges and have “politicized” the process.

Justice Minister Peter MacKay slammed the NDP justice critic Francoise Boivin, who said the Conservatives rushed headlong into a legal battle over Nadon.

Boivin for the first time indicated her view that Nadon was “very competent but not eligible.”

MacKay then retorted: “I can guarantee her we will be coming forward with the name of a very qualified appointment based on legal expertise, based on ability and merit, and if she plays her cards right she might even be considered.”

More from the Toronto Star & Partners

LOADING

Copyright owned or licensed by Toronto Star Newspapers Limited. All rights reserved. Republication or distribution of this content is expressly prohibited without the prior written consent of Toronto Star Newspapers Limited and/or its licensors. To order copies of Toronto Star articles, please go to: www.TorontoStarReprints.com